Privileges of Legislature

The Karnataka assembly Speaker,on June 21,2017 ordered the imprisonment of two journalists for a year based on recommendations in two separate reports of its privilege committees.

The order has drawn widespread criticism as an effort to throttle the media.

 Constitutional Provisions to protect the privileges of the legislature

• Article 105pertains to the powers, privileges, etc, of Parliament, its members and committees while Article 194, which is identical to 105, protects the privileges and powers of the houses of legislature, their members and committees in the states.
• These sections protect the freedom of speech of parliamentarians and legislators, insulate them against litigation over matters that occur in these houses, and give powers to define the powers, privileges and immunities of a house, its members and committees.
• The Constitution confers certain privileges on legislative institutions with the idea of protecting freedom of speech and expression in the House and ensuring that undue influence, pressure or coercion is not brought on the legislature in the course of its functioning.

What is a breach of privilege?

While the Constitution accords special privileges and powers to parliamentarians and legislators to maintain the dignity and authority of Parliament and the legislatures, these powers and privileges are not codified. There are no clearly laid out rules on what constitutes breach of privilege and what punishment it entails.
The purpose of the law of privilege is to protect the independence of the House. Privilege is to be invoked only if an intervention prevents members of the House from discharging their duties. Typically, this amounts to preventing legislators from speaking their mind.

Remedies in case of breach of Previlege:

All state legislatures have special privilege committees comprising 10 to 12 legislators as members and usually headed by a senior politician from the ruling party. Whenever a legislator has a complaint he/she can send a letter to the committee. The accused person is summoned and an inquiry is conducted by the committee and based on findings a recommendation is made to the legislature. When the matter is tabled in the legislature, a debate can be initiated on the report and based on the assertions of the House, the Speaker can order the punishment as defined by the privileges committee or order otherwise.

Criticism of the move:

• The provision is at times used to counter media criticism of legislators and as a substitute for legal proceedings.
• Breach of privilege laws allow politicians to become judges in their own cause, raising concerns of conflict of interest and violating basic fair trial guarantees.
• Unfortunately, breach of privilege is invoked to insulate elected representatives from criticism.
• Without a law codifying the legislative privileges, there is little merit in subjecting anyone, leave alone a journalist, to penal action for allegedly breaching a legislator’s privilege, unless there is a move or attempt to obstruct the functioning of either the House or its members.
• In the present case, by no stretch of imagination could the articles published by the two journalists could have impeded the independent functioning of the three legislators who had complained against them. If the members felt defamed, they could have opted to pursue an appropriate judicial remedy in their individual capacity.
• There is very little clarity about the law of privilege, and whether it is proper for legislatures to award punishments remains debatable.
• There are many unsettled questions about the very nature of legislative privileges. The absence of codification gives the House the freedom to decide when and how breach of privilege occurs. Even if it is conceded that the House has such a right, a moot question is whether the legislature, through its Committee of Privileges, should be a judge in its own cause. Whether the legislature’s power to punish for breach of privilege extends to handing down a prison term is still an open question.
• With no codified laws for what constitutes a breach of privilege offence or prescriptions for punishment, this is largely a grey area in legal terms.

Suggestions:

• The legislature must use the power to punish for contempt or breach of privilege sparingly, invoking it mainly to protect the independence of the House and not to take away the liberty of critics. Legislators are in a position to clarify facts and refute misconceived criticism. There is no reason for them to seek imprisonment for contempt.
• The time has come for the legislature to codify privileges and for the higher judiciary to lay down the limits of penal action for breach of privilege.
• The judiciary should immediately clarify the applicability of privilege, and ensure that legislatures can no longer play plaintiff, advocate and judge, all rolled into one.
• This case should serve as a spur to bring clarity to the provision of privilege. Situations which attract it should be narrowly and unambiguously defined, and legislatures should not have the right to impose punishments unilaterally, only because some of their members feel impugned.

To conclude:

Article 105 and Article 194 was inserted in the constitution with the basic objective of allowing legislators and parliamentarians to function efficiently. However the breach of privilege has not been defined clearly and thus space for its misuse. Thus its time to codify the rules.